ARB CASE NO. 03-142
ALJ CASE NO. 03-STA-27
DATE: May 28, 2004
In the Matter of:
TERRY PUGH,
COMPLAINANT,
v.
CON-WAY SOUTHERN EXPRESS,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant:
Terry Pugh, pro se, Nesbitt, Mississippi
For the Respondent:
Carla J. Gunnin, Esq., Constangy, Brooks & Smith, LLC, Atlanta, Georgia
FINAL DECISION AND ORDER
This case arises from a complaint Terry Pugh (Pugh) filed alleging that his employer, Con-Way Southern Express (Con-Way), violated the employee protection (whistleblower) provisions of the Surface Transportation Assistance Act (STAA or Act) of 1982, as amended and recodified, 49 U.S.C.A. § 31105 (West 1997), when it terminated his employment. On August 19, 2003, a Department of Labor Administrative Law Judge (ALJ) issued a Recommended Decision and Order of Dismissal (R. D. & O.) in which he determined that Pugh had not established that he engaged in activity protected by the STAA and, although an adverse action was taken against him when his employment was terminated, Pugh had not established that his termination was due to any discriminatory motive. We determine that Pugh failed to show that Con-Way fired him for protected activity and DISMISS the case.
1>This regulation provides, "The [ALJ's] decision shall be forwarded immediately, together with the record, to the Secretary for review by the Secretary or his or her designee."
2 The ALJ's recommended decision provides a summary of the testimony of record. We address the portion of the testimony relevant to the determination of this complaint.
3 Pugh also testified that on July 31, he submitted a form requesting sick leave and advised Bell that he should not be scheduled to work August 1 because he was going to the dentist. R. D. & O. at 4; HT at 38-40. Con-Way's Service Manager, Charles Leeke, testified that he is the only person authorized to sign sick leave forms, and that he first saw Pugh's sick leave request the day before the hearing. R. D. & O. at 6; HT at 99, 103-105. Jamuel Johnson, Con-Way's Personnel Supervisor, testified that when an employee wants to take sick leave, he provides the employee with a sick leave form, on which he records the number of days the employee has been absent. HT at 109. He also testified that his handwriting was not on the form submitted into evidence by Pugh, and that the form submitted was a version which had been out of use for two to three years prior to Pugh's accident. HT at 110; CX 4.
4 Pugh testified that he reported for work between 7 and 7:30 p.m. HT at 45. Bell testified that Pugh appeared at 8 p.m. HT at 77.
5 The ALJ credited Pugh's testimony that he had not refused to drive his truck because it would be unsafe and that, at the time of the accident that ultimately was the reason for his termination, he had the ability to safely drive his truck and that there was no unsafe condition regarding the truck itself. See Hearing Transcript at 46, 62-64, 70-7; R. D. & O. at 4. In weighing the testimony of witnesses, the fact-finder considers the relationship of the witnesses to the parties, the witnesses' interest in the outcome of the proceedings, the witnesses' demeanor while testifying, the witnesses' opportunity to observe or acquire knowledge about the subject matter of the witnesses' testimony and the extent to which the testimony was supported or contradicted by other credible evidence. Cobb v. Anheuser Busch, Inc., 793 F. Supp. 1457, 1489 (E.D. Mo. 1990); Shrout v. Black Clawson Co., 689 F. Supp. 774, 775 (S.D. Ohio 1988); Jenkins v. United States Envtl. Prot. Agency, ARB No. 98-146, ALJ No. 88-SWD-2, slip op. at 9 (ARB Feb. 28, 2003). The ARB defers to an ALJ's credibility findings that "rest explicitly on an evaluation of the demeanor of witnesses." Stauffer v. Wal-Mart Stores, Inc., ARB 99-STA-2, slip op. at 9 (ARB July 31, 2001) quoting NLRB v. Cutting, Inc., 701 F.2d 659, 663 (7th Cir. 1983).
6 In discussing the complaint prong of the Act, the ALJ stated that evidence that Pugh was disobedient to Con-Way was key to establishing a basis for which an employer would retaliate against an employee. We clarify that evidence of disobedience is not required in establishing coverage under the complaint provision. Pugh's STAA claim is that he was fired because he made a complaint relating to a violation of a particular safety requirement. That requirement prohibits the company from requiring a driver to drive when his ability or alertness are so impaired that driving is unsafe. Pugh's testimony that (in his conversation with Bell he did not protest because of an unsafe condition) undercuts his argument that he was making a complaint relating to driving when impaired alertness or ability make driving unsafe. Similarly, the ALJ's crediting of that testimony is fatal to Pugh's refusal to drive claim because there would be no violation of subsection (1)(b)(i) if it was safe for Pugh to drive, and no violation of (1)(b)(ii) if Pugh had no reasonable apprehension of injury to himself or the public because of an unsafe condition.